December 20, 2013

A Plea for Bayesian Reasoning in Assessing the Appropriateness of Anal/Vaginal Probes Following K-9 Alerts

I wrote previously about a pending lawsuit to be filed by the ACLU on behalf of 54-year-old Jane Doe, a U.S. citizen who alleges that she was subjected to six hours of increasingly invasive cavity searches by U.S. Customs and Border Protection (CBP) agents and clinicians at the University Medical Center of El Paso as she attempted to return to the U.S. from Mexico via the Cordova Bridge in El Paso, Texas. That lawsuit has now been filed.

The facts alleged in the complaint, which are more or less those previously alleged in the media by Doe through her lawyer, are horrific. Here's the gist (Doe consented to none of the following searches, and none turned up any evidence of contraband):

After she presented herself for inspection at the check point, a CBP agent confiscated her passport and told her she'd been randomly selected for additional screening.

She was then subjected to an over-the-clothes frisk, in which a female agent "ran her finger over Ms. Doe’s genital area" and then, after ordering Doe to squat, "put her finger in the waistband of Ms. Doe’s pants and inserted her finger in the crevice of Ms. Doe’s buttocks."

Doe was then told to stand in line with other people, at which point a drug dog appeared to alert to her.

Doe was taken to a private room, where she was told to drop her pants and crouch. An agent examined her anus with a flashlight. An agent then "parted Ms. Doe’s vulva with her hand, pressed her fingers into Ms. Doe’s vagina and visually examined her genitalia with a flashlight."

Agents sealed the cuffs of Doe’s pants by taping her pants to her legs. They then transported her, handcuffed, to University Medical Center of El Paso, where they handcuffed her to an exam table.

Medical staff wheeled a portable toilet into the room, instructed Doe to take a laxative, and waited for it to take effect. They then observed her produce a bowel movement.

Doctors x-rayed Doe's abdomen.

Agents once again handcuffed Doe to an exam table and watched (along with passersby, since the exam room door was left open) while doctors inserted a speculum into Doe's vagina.

Doctors conducted a digital probe of Doe's vagina while palpating her abdomen.

Doctors conducted a digital anal probe of Doe.

Finally, doctors gave Doe a CT scan.

Having found absolutely nothing incriminating, agents then gave her a choice: Retroactively sign a medical "consent" form and CBP will pick up the medical bill, or refuse to sign and be billed. Doe refused to sign and was later billed over $5,000 for her "treatment." She has not paid.

If true, this fact pattern suggests either that those involved are sadists or—far more likely—that they, like those who searched David Eckert and Timothy Young, are grossly overconfident in the evidentiary signal provided by a K-9 alert.

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

I have no earthly idea what a "bona fide" organization means, but my understanding is that there is wide variation in the standards employed by various training and certification organizations, some of which will "pass" a K-9 with a very high false positive rate. Among other things, K-9 responses have been shown to be significantly influenced by their handlers' beliefs about the presence of contraband. Or, on second thought, maybe not.

But even if we assume a very reliable K-9, and whatever we deem the predictive value of a positive test (i.e., an alert), it will be less than 100%. We should update our confidence in the presence of contraband when subsequent human searches yield nothing. And at some point in a series of false human searches following an initial K-9 alert, our updated belief should be considered insufficient to justify continued searches.

Agents and clinicians in this case — who had no reason to suspect Doe other than the K-9 alert combined with the base rate of drug smugglers among those who enter the U.S. at El Paso — behaved as if the reliability of K-9 alerts were 100%, or something very closely approaching it. Since these are the same principles that govern when it is appropriate to offer, and how to interpret the results of, medical screening tests, it's more than a little ironic than so many doctors seem willing to go to the mat for these K-9s and their handlers.

From the Code of Ethics for Emergency Physicians (Amer. College of Emergency Physicians) (see toward end of excerpt for comment about police):

Virtues in emergency medicine

As noted above, the emergency department is a unique practice environment with distinctive moral challenges. To respond appropriately to these moral challenges, emergency physicians need knowledge of moral concepts and principles, and moral reasoning skills. Just as important for moral action as knowledge and skills, however, are morally valuable attitudes, character traits, and dispositions, identified in ethical theory as virtues. The virtuous person is motivated to act in support of his or her moral beliefs and ideals, and he or she serves as a role model for others. It is, therefore, important to identify and promote the moral virtues needed by emergency physicians. Fostering these virtues can be a kind of moral vaccination against the pitfalls inherent in emergency medical practice. Two timeless virtues of classic Western thought have essential roles in emergency medicine today: courage and justice.

Courage is the ability to carry out one’s obligations despite personal risk or danger. The courageous physician advocates for patients against managed care gatekeepers, demanding employers, interrogating police, incompetent trainees, dismissive consultants, self-absorbed families, and inquiring reporters, just to name a few. Emergency physicians exhibit courage when they assume personal risk to provide steadfast care for the violent, psychologically agitated criminal or the infected intravenous drug-user.

On the first issue, I agree that clinicians asked to perform series of invasive searches need to think about the ethics of what they're doing rather than "just following orders." (I tend to think that's because they're human beings dealing with other human beings, rather than because they have special duties as doctors; that is, law enforcement agents should be thinking about the ethics of what they're doing, too, and exercise some discretion, notwithstanding whether the 4th Amendment allows their conduct or whether they're immune from suit. But that's a longer discussion about the concept of role morality.)

But I'm not aware of any professional guidance or state law governing the role of clinicians in conducting cavity searches for law enforcement, and apparently their time is past due. Many ER departments do have institutional policies on this matter, though, including the University Medical Center of El Paso. According to the complaint, the Center's formal policy is not to perform such searches unless there is either consent from the patient/suspect or a warrant. The complaint speculates about why that policy wasn't followed here.

On the second issue, yes, we should certainly be collecting data about individual K-9 reliability, and law enforcement should retrain or retire K-9s (or handlers) that fail to meet standards of reliability. Most police depts. will say that that's already done. Part of the rub is how we define and measure sufficient reliability. See generally http://www.americanbar.org/content/dam/aba/publications/Jurimetrics/summer2013/gastwirth.authcheckdam.pdf and http://www.georgemasonlawreview.org/doc/14-1_Myers.pdf. In any case, my point was that however we resolve these questions about when an individual K-9 has been sufficiently reliable in the past to justify a search (legally or ethically), we should leave room for the very real possibility that even reliable K-9s will be wrong sometimes, and update our beliefs about the presence of contraband in light of the new evidence that fruitless cavity searches constitute.

PP, "first do no harm" is an unworkable principle for medicine (and not actually used). Many legitimate aspects of medicine involve harming the patient in order to achieve net benefit. Something like "always seek the best overall outcome for your patient," i.e. a fiduciary model that incorporates appropriate risk-taking, is closer to a workable principle, though even there we run into difficulties with transplant teams procuring organs from the living (which can only benefit the donor emotionally, if at all, and not medically). The broader issue you raise is that the state has legitimate law enforcement (and other) ends which might be more effectively -- and humanely -- carried out with the help of medically-trained people than without that help. Given the choice between a cop and a doctor giving me the speculum treatment, I'll take the doctor (or at least a "schmoctor," see Arthur Isak Applbaum, Ethics for Adversaries: The Morality of Roles in Public and Professional Life (Princeton U. Press 1999), esp. chap. 3, “Doctor, Schmoctor: Practice Positivism and Its Complications”). (Similar considerations arise with lethal injection and, to a more complicated extent, participation in "enhanced interrogation.") I think the more pressing issue is whether, when, and why anyone should conduct cavity searches.

But I have to run to catch my flight back to the U.S. from France and can't defend that position now. I'll be largely unable to respond to comments -- or rescue them from the spam filter, sigh -- for the next day or two.